VII.4: The Separation of Powers

One of America’s founding principles was that liberty cannot survive unless power is divided into multiple hands.

The doctrine of separation of powers has a long history. The ancients (Greek and Roman) divided power according to a plan called mixed government. That is, they mixed or divided power between a monarchy, an aristocracy, and a democracy (the people). Later, at the time of America’s Revolution, Great Britain created a similar plan. The British divided Parliament’s power between the monarch, the lords, and the commons.

Modeling on the British example, America’s founders gave America a President, Senate, and House. But America’s founders rejected the ancient mixed government idea because it contained monarchy and aristocracy. So they searched for something to replace it.

Madison wrote:

To what expedient, then, shall we finally resort, for maintaining in practice the necessary partition of power …? The … defect must be supplied, by so contriving the interior structure of the government as that its several constituent parts may, by their mutual relations, be the means of keeping each other in their proper places. (Madison 1787-8, 51.1)

We call this concept the separation of powers doctrine. In other words, it separates power between the executive, legislative, and judicial branches. Madison’s description here echoes the ancient description of mixed government in a sense. That is, each branch can be held in its proper place by the other two branches working together. So this doctrine attempts to maintain the balance of power just as in mixed government, even though it’s very different.

The separation of powers doctrine replaced mixed government as a way to divide power into multiple hands.

But the idea of the separation of powers isn’t new. Its roots descend back in time at least as far as ancient Greece. Aristotle wrote of dividing power into “the legislative, the executive, and the judicial”. (Lloyd, 1999, 1.26)

Then, in the 17th century, John Locke wrote of the separation of powers, when he wrote of:

[B]alancing the power of government, by placing several parts of it in different hands. (Locke 1690, VIII.107)

And then later it was “elaborated in the century from Locke to Montesquieu”. (Diamond 1978, 33)

James Madison credited Montesquieu with formulating America’s version of the separation doctrine. And Montesquieu explained it like this:

In every government there are three sorts of power: the legislative; the executive in respect to things dependent on the law of nations; and the executive in regard to matters that depend on the civil law. …The latter we shall call the judiciary power…. …There would be an end of everything, were the same man or the same body, whether of the nobles or of the people, to exercise those three powers, that of enacting laws, that of executing the public resolutions, and of trying the causes of individuals. (Montesquieu [1748] 1914, XI.6)

America’s founders realized that by itself the separation of powers doesn’t provide a practical way to maintain the balance of power.

For that to work, there must be a way for the three departments to keep “each other in their proper places”, to use Madison’s words. And that’s the whole purpose of dividing power. So they added checks and balances to give each department some control over the other two.

For example:

1. The president can veto bills written by the legislature, and he can nominate members of the judiciary.
2. The legislature can refuse to endorse nominations by the president (and even impeach him), and they can create or remove judicial courts.
3. The judiciary can declare presidential actions as well as laws from the legislature to be unconstitutional and therefore null and void.

So each of the three departments has some control over each of the other two. In theory, that makes it work sort of like mixed government – each part can be constrained or limited by the other two.

How well has the separation of powers worked? How well have the checks and balances worked? Are the powers still separated when a single political party controls all three branches of government?

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Sources:

Diamond, Martin. 1978. “The Separation of Powers and the Mixed Regime”. Publius, Vol. 8, No. 3, “Dimensions of the Democratic Republic: A Memorial to Martin Diamond” (Summer), 33-43. Oxford, UK: Oxford University Press. Stable URL: http://www.jstor.org/stable/3329708 (Accessed Oct. 6, 2020)

Locke, John. 1690. Second Treatise of Government. Project Gutenberg. http://www.gutenberg.org/files/7370/7370-h/7370-h.htm (Accessed July 4, 2017).

Lloyd, Marshall Davies. 1999. “Polybius and the Founding Fathers: the separation of powers”. http://www.mlloyd.org/mdl-indx/polybius/intro.htm (Accessed Apr. 30, 2016).

Madison, James. 1787-8. Paper No. 51. The Federalist Papers by Alexander Hamilton, James Madison and John Jay.

Montesquieu, Baron de, Charles de Secondat. [1748] 1914. The Spirit of Laws. Trans. Thomas Nugent. London: G. Bell & Sons, Ltd. Revised by J. V. Prichard.